When Congress passed the 14th Amendment in 1868, it focused on embedding the civil rights of the formerly enslaved in the Constitution. But the framers of the amendment also included a clause meant to keep those who served the Confederacy from holding public office.
This “insurrection clause” of the U.S. Constitution—Section 3 of the 14th Amendment—disqualifies anyone from holding public office who “engaged in insurrection or rebellion” against the United States. It’s this clause that the Colorado Supreme Court invoked to strike Donald Trump’s name from the Republican primary ballot. Not surprisingly, Trump has fought back, taking his case all the way to the federal Supreme Court.
In front of the Supreme Court, the legal team of Donald Trump
has tried to argue that the specific language of the clause doesn’t apply to the former president. The clause, Trump’s lawyers argue, refers only to those who took oaths to support the Constitution “as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State.” Donald Trump was the president of the United States, they say, not an “officer.”
Today, Trump is running for reelection in the United States with a better than average chance of success. Bolsonaro, meanwhile, has been banned from holding office in Brazil until 2030 and faces even more serious charges in connection to his coup plotting. How could such similar circumstances produce such divergent results?
It’s really quite remarkable that the Supreme Court hasn’t laughed this argument out of the courtroom (as a lower court essentially did when Trump’s legal team claimed he had total, king-like immunity from prosecution). The drafters of the 14th Amendment didn’t specify “president” because they couldn’t imagine that the head of the United States would foment a rebellion against those same United States. They were addressing the specific reality of the Civil War, in which President Abraham Lincoln was trying to hold together “a house divided.” To put “president” on the list of people barred from holding office would have seemed ridiculous: The president was logically the defender of the nation, not its saboteur.
How the framers of that amendment would have shuddered at the spectacle of January 6.
But plenty of countries in Latin America have faced precisely that scenario, of a leader or former leader who has used force to seize absolute power. And that’s why the Brazilian case is so important. While Americans are debating esoteric clauses of the Constitution in an effort to determine Trump’s place on or off the ballot, Brazil is taking far more effective steps to ensure that Jair Bolsonaro never leads the country again.
Anatomy of a Coup
It seemed at first as though Brazil’s would-be dictator Jair Bolsonaro, elected in 2018 to the presidency, was following Donald Trump’s playbook. During the run-up to the presidential election in 2022, when he faced off against former president Luiz Inazio Lula da Silva, Bolsonaro claimed that the contest was rigged against him, that the voting machines were compromised, that the election would be stolen. As in the United States, the final vote was indeed close. Like Trump, Bolsonaro refused to concede.
As soon as the election was called for Lula, Bolsonaro supporters massed in front of military installations, urging the Army to intervene. Brazil, unlike the United States, has a history of military coups. And Bolsonaro, it turns out, had prepared the ground in advance for just such a coup.
While Trump focused on recounts, “finding” additional votes in Georgia, gathering a separate
slate of electors for the Electoral College, and ultimately pressuring the vice president to withhold certification of the Electoral College results, Bolsonaro went a different route. He appealed directly to the top echelon of the military to launch a coup. Only the head of the Navy warmed to the idea.
In the waning days of his presidency, Bolsonaro and his allies did what they could to persuade the head of the Army, Freire Gomes, to support a military coup. But
he held firm, even in the face of a smear campaign that characterized him as a traitor to the nation.
Then on January 8, 2023—after Lula had already taken office—Bolsonaro supporters took matters into their own hands. Like their counterparts two years earlier in Washington, D.C., they rioted in the center of the federal capital, occupying the buildings that represent the three branches of the Brazilian government. It took security forces five hours to evict the protestors and secure the buildings.
Aside from Bolsonaro’s appeal to the military, a much surer bet in Brazil than it would have been in the United States, the two leaders followed a similar trajectory: Discredit the process beforehand, refuse to acknowledge the victory of the other candidate, look for ways to subvert the process, and mobilize supporters to generate the “street heat” necessary to force the authorities—the military in Brazil, the vice president in the United States—to do the (far) right thing.
Today, Trump is running for reelection in the United States with a better than average chance of success. Bolsonaro, meanwhile, has been banned from holding office in Brazil until 2030 and faces even more serious charges in connection to his coup plotting. How could such similar circumstances produce such divergent results?
The Brazilian Response
One of the first moves by the Brazilian government was to ban Bolsonaro from running for office for eight years, which immediately removed the greatest risk to the country’s democracy. This decision had nothing to do with any coup plots but rather the ex-president’s penchant, like Trump, for spreading “fake news.” In this case, Bolsonaro had met with foreign ambassadors in July 2022 and provided them with false information about the Brazilian electoral system. Effectively, Bolsonaro told them that the system was fraudulent, a common Trumpian refrain.
According to
a report from one of the Brazilian judges on the case, “Bolsonaro also allegedly said that in 2018 voting machines had changed voters’ choices to benefit his opponent, and that the Brazilian voting machines are not auditable, while insinuating that electoral and judicial authorities were protecting ‘terrorists.’”
Although the authorities arrested quite a few people in connection to the January 8 riots—in the low thousands—the government ultimately
released over 500 on humanitarian grounds. Instead, the focus of the investigations has been on the organizers, the funders, and the leading figures behind both the riots and the coup plot.
The Brazilian authorities are upholding the legal system by prosecuting challenges to that legal system.
This month, federal authorities conducted raids on dozens of individuals, including a prominent
Catholic priest and several military figures. These raids came on the heels of a probe into the activities of Bolsonaro’s son and his former spy chief for the alleged illegal monitoring of a slew of important Brazilians, from judges to Lula allies.
Bolsonaro and others have had their passports confiscated. That makes it impossible for the ex-politician to fly off to Florida, as he did immediately after his failed bid for reelection, to nurse his wounds in Trumpland.
Vengeance?
Perhaps you are thinking that the Brazilian scenario is precisely what Donald Trump is planning to do if or when he regains the Oval Office. He
has promised “retribution” in the form of investigating “every Marxist prosecutor in America” and rooting out “the radical-left thugs that live like vermin within the confines of our country.” Of course, he also reserves most of his enmity for those within the Republican Party—are you listening, Nikki Haley?—who have not shown sufficient deference to his authority.
Are not the Brazilians waging a similar campaign of retribution against the opponents of the current president?
But such a conclusion is a category error. The Brazilian authorities are upholding the legal system by prosecuting challenges to that legal system. It is not partisan retribution—any more than this column is a partisan attempt to persuade you to vote a particular way in November. Those who threaten to overturn the legal order must be held responsible for their actions. That is what “rule of law” means.
Yes, that “rule of law” is often a thinly veiled system of oppression. The civil rights movement has challenged discriminatory laws; the pro-choice movement is challenging oppressive anti-abortion restrictions. These movements have engaged in civil disobedience, to be sure. But their purpose has been to create a more perfect democracy, not to overthrow democracy.
Perhaps because they have not enjoyed democracy for very long—Brazil was under a military dictatorship from the mid-1960s to the mid-1980s—Brazilians do not take democracy for granted. They know how quickly it can be snatched away.
Trump attempted just such a smash-and-grab in 2020 by setting out to steal an allegedly stolen election. And he has made clear his intentions, win or lose, to whack away at the very ladder of democracy that he climbed to power. On Trump’s side is a lot of boiling-point anger, but what may prove decisive is something very different: a dangerous complacency about the value of democracy itself. If democracy is indeed the civil religion of the United States, then prepare for the surge of the apostates
